ESPN And Univision Say Screw Fair Use: Your 6 Second Vine Videos Of World Cup Goals Must Be Taken Down

from the permission-society dept

Last year, we wrote about the ridiculousness of Prince sending DMCA takedowns over 6 second videos on Vine. Those seemed like a pretty clear fair use case. The very nature of Vine, in that it limits videos to 6 seconds seems tailor made for fair use, even if there is no magical time period that guarantees fair use. Either way, it should be no surprise that when it comes to a major sporting event, the powers that be don't believe in any fair use at all. Similar to the Olympics, nearly every time we write about the World Cup, it involves an aggressive abuse of claimed intellectual property rights to stifle perfectly legitimate communications and content.

The latest, according to the Wall Street Journal, is that ESPN and Univision are rushing around taking down Vine clips of World Cup goals, even to the point that some major media properties have had their Vine accounts killed for being accused of infringement too often:

Since the start of the tournament Vox Media-owned sports site SB Nation, one of the chief purveyors of quick World Cup content, has had two accounts suspended on Vine, according to its managing editor Brian Floyd.

SB Nation received suspension notices from Twitter, Mr. Floyd said, after a complaint from media-protection company Irdeto, which works on behalf of Univision.

Considering that fair use rules are explicitly designed for news reporting, it seems rather clear that these are fair use. It's unclear from the report if SB Nation has appealed the takedown notices or not, but it's rather unfortunate that Twitter just killed those accounts without bothering to recognize that they're clearly being used for fair use reporting on the World Cup.

Similarly, the article points to a recent Slate post which for a little while had a video showing all 136 goals scored in the group stage of the World Cup, spliced together in quick clips, but that video has since been removed after ESPN contacted Slate to claim it was infringement. Once again, this seems like a fairly clear cut case of fair use, using news reporting in a transformative manner which isn't going to impact the market for the original. But, of course, ESPN is owned by Disney, and Disney doesn't exactly have the best of reputations when it comes to understanding fair use in others (even if it's been getting better on that front lately).

It's really too bad that it appears that Slate and Vox/SB Nation appear to have more or less given in to these takedown requests rather than standing up for fair use.

Re:

Where are ESPN doing this?

FIFA sells the rights to broadcast the world cup matches (and thus the goals) to various companies around the world. I'm guessing that ESPN has that in the US; here in the UK the matches are split between the BBC and ITV.

Are ESPN only targeting US websites? They have no right to decide whether the BBC for example can show goal clips to a UK audience. Hell, they have no right to decide whether I can show goal clips to a UK audience - that would be down to the local media company and laws whether it constitutes infringement etc.

Presumably it also depends on the source for the Vine clip. If it was recorded live then it's down to FIFA (since I think tickets tend to say that you assign the copyright on any recording you make to FIFA?) as it's not ESPN's copyright.

Re:

the only thing clear is this content isn't fair use

Really techdirt? I would think videos of goals would be quite clearly not fair use. They are using the entire video of the goal itself, often the complete sum of highlight reels from matches. It is the complete expression of the copy written work, not just a factual reporting of it. And it is quite clearly undercutting the copy right holder's ability to exercise profit from the work as quite a large market is just interested in seeing the goals, and why shouldn't the copy right holder gain from having those people visit their domains rather than their competitor's domains?

Why should SB nation be allowed to gain profit in lue of ESPN by just copying and hosting content that ESPN paid for the rights for and worked to produce?

Re: Re: the only thing clear is this content isn't fair use

To followup and expand on a comment below this, the same fair use that allows every sports network in the world to report on the world cup AND SHOW VIDEO OF THE GOALS, is the same fair use that applies to, well, anyone and everyone ELSE.

Networks dont have to request permission from ESPN to show the highlights on the 6 o'clock news. They usually just give attribution.

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They file takedowns because they can

The main reason for these takedowns is that they can get away with it.A video that's 6 seconds long isn't taking away revenue and these clips clearly fall under fair use and news-reporting.But who cares about this- as long as people give in, the companies will keep filing takedowns.

These takedowns will only stop when people stand up to them... but not many people will since they don't want to risk losing their safe harbor protection

Re: Re: the only thing clear is this content isn't fair use

"Considering "the complete expression of the work" is 90 minutes long (plus stoppage time), that is, the entire game, your analysis has already suffered a fatal flaw."

Don't get distracted by duration as the definition of complete. No, the video feed is the complete expression of the work, The vines are not just taking the names of the player scoring the goal, expressing them in a different medium, and or just reporting the score. They're taking someone else's work pretty much as is and sourcing it themselves.

The copyright is on the broadcast and every single aspect or moment of it, whether its a goal, a throw in, a single frame or the audio track of the commentators.

No a complete highlight segment isn't 6 seconds long but it is made up of compilations of 6 sec clips, which is exactly what these collections of vines are.

All the broadcasters who carry footage provided courtesy of another source either pay for the rights to do so, or carry them under the conditions set forth by the rights holders. What makes these vine publishers exempt from these policies?

Re: the only thing clear is this content isn't fair use

It is the complete expression of the copy written work, not just a factual reporting of it.

Facts aren't copyrightable to begin with. Fair use doesn't cover 'factual reporting' because it doesn't need to. It's safe to assume, therefore, that fair use must protect a greater use than just factual reporting.

And it is quite clearly undercutting the copy right holder's ability to exercise profit from the work as quite a large market is just interested in seeing the goals

Well, that might be worth mentioning in the fourth fair use factor. But it's not determinative.

Why should SB nation be allowed to gain profit in lue of ESPN by just copying and hosting content that ESPN paid for the rights for and worked to produce?

That ESPN paid for it and worked for it is irrelevant; that's sweat of the brow, and it is unconstitutional in the US.

That all said, I'd bear in mind Harper & Row v. Nation Enterprises -- it's possible to have news reporting which only uses excerpts of a work but is nevertheless not fair use.

Re: Re: Re: the only thing clear is this content isn't fair use

All the broadcasters who carry footage provided courtesy of another source either pay for the rights to do so, or carry them under the conditions set forth by the rights holders. What makes these vine publishers exempt from these policies?

Re: Re: Re: the only thing clear is this content isn't fair use

It is rarely the case that a complete copyrighted work is subdividable into multiple complete copyrighted works. It's one or the either. Either some specified set of clips from the game form a series of copyrighted works, or the broadcast itself forms a copyrighted work. If it's the latter, your argument is nonsensical on its face; if it's the former, I would love to see the precise list of every complete copyrighted work in each World Cup game, and I'm betting you can't provide them.

Re: Re: Re: Re: the only thing clear is this content isn't fair use

that's madness, you don't have to delineate separate copyrights for how your work is used. You actually don't even need to provide a copyright notice, its always implied. I don't need to provide a list because there isn't one, its all copyrighted. What I will provide is some reference for you if you want to further educate yourself on this:

Re: Re: Re: Re: Re: the only thing clear is this content isn't fair use

I'm well aware of the implicity of copyright. Yet copyright firmly recognizes that there is such a thing as a complete copyrighted work, even if it is not explicitly declared to be copyrighted. Copyright is a discrete system, not an continuous one. A part of a copyrighted work is indeed copyrighted, but it is copyrighted because it is a part of the complete work; it is not a complete copyrighted work in itself, it is but a portion.

The only provision I am aware of for multiple complete works being considered a complete work is for collective works. But in collective works there is always a clear delimitation of the parts - a list of copyrighted works within the collective.

So, back to my original point: either there is a clear list of the delimited copyrighted works within each game, or you have fundamentally misunderstood how copyright is granted and your argument is void.

And the NFL can stipulate whatever the hell it wants, that doesnt make it copyright law. those are just their conditions which are only enforcable under contract. anyone in the world could use their footage and has a Fair Use defense against their claims of copyright infringement. Their contracts only mean something between the two parties that sign them, not the whole world.